FCC MB Docket 04-232

On June 21, 2004, the Federal Communications Commission (FCC) adopted a Notice of Proposed Rule Making (NPRM) concerning a potential rule designed to require the recording of all broadcast programming for a period of 60-90 days. If the NPRM is adopted, radio and television broadcasters would have to maintain an archive of all their broadcasts and retain them for a period of time.

The FCC has stated that the reason for this NPRM is to aid in the enforcement of regulations prohibiting obscene speech. "In this Notice of Proposed Rulemaking ('NPRM'), we propose to require that broadcasters retain recordings of their programming for some limited period of time (e.g., 60 or 90 days) in order to increase the effectiveness of the Commission's process for enforcing restrictions on obscene, indecent, and profane broadcast programming" (FCC MB Docket No. 04-232). The FCC does not allow or protect speech deemed obscene as per the First Amendment of the United States Constitution. Indecent speech is constitutionally protected; however the FCC has set limits and guidelines as to how, when, and where this type of speech may be broadcast.

"Indecency is defined as language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities. Obscene speech is defined by a three-part test: (1) an average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest; (2) the material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and (3) the material, taken as a whole, must lack serious literary, artistic, political, or scientific value." (FCC MB Docket No 04-232, 2004, 1-2).

The Super Bowl incident with Janet Jackson sparked a record number of complaints to the FCC numbering over 200,000 just days after the broadcast. The mishap sparked debate over regulation of other media such as cable and satellite television. Indecency is a hot political topic, and the FCC is eager to regulate (King, 2004). The FCC justifies the need for this NPRM because Congress has proposed to raise the maximum fine for indecent broadcasts by 1,700 percent. The jump will go from $27,500 to about $500,000. With that level of financial penalty at stake, more concrete evidence must be available for review. It is unlikely that the average broadcast consumer has the ability to provide a sample of the broadcast in question. Therefore, the responsibility will be placed on the broadcaster (Johnston, 2004).

One topic of debate concerning this NPRM is the impact of this NPRM on small, local broadcasters. For the noncommercial broadcaster, this regulation can present logistical and financial challenges. This project will investigate the feasibility of requiring local broadcasters to comply with this potential new regulation from a logistical, financial, and First Amendment perspective.

Contents

The FCC's reasons for wanting to institute this NPRM has been a hot topic in broadcasting for years. This type of regulation ventures into an arena that the FCC and broadcasters have never experienced. Since there have been very few (if any) academic or professional studies conducted on this issue, the FCC has asked for comment on MB Docket No. 04-232, which would require broadcasters to archive 6am-10pm broadcasts for 60-90 days.

There were 564 comments filed with the FCC regarding this NPRM. However, reasons for supporting or opposing the NPRM are mixed. The reasons and justifications fit into a few categories. In broad terms, people base their arguments in: First Amendment or copyright terms, logistical terms, and financial terms. Essentially, any argument for or against the NPRM falls within one of these categories.

Attorneys Steptoe and Johnson (2004) recognized logistical challenges of recording broadcasts in a different FCC case, MB Docket No 02-230. In this case, the attorneys requested comment from their constituents on the technical challenges of recording broadcasts that contain digital ATSC flags. The ATSC flag disables digital recorders from recording a broadcast (Steptoe & Johnson, 2002). The flag issue has been a topic of logistical debate on the feasibility of the broadcast retention NPRM. Since broadcasts that contain these tags cannot be recorded digitally, some contend that logging will not be possible or will present even more technical obstacles.

Karl Paulsen of TVTechnology.com believes that TV stations already have the low-tech infrastructure required to comply with the NPRM. Currently, most TV stations have the equivalent of a VCR with long record capabilities. These recording devices are used for air checks and affidavits of commercials. Often, they do not contain an audio component because they are only needed for verification purposes that the commercial did in fact air. However, Paulsen believes that audio could be added. Another option would be to record in a low quality MPEG-1 format onto a hard drive. Unfortunately, this option does require a significant amount of disk space. Even recording in this low quality format would require 9 gigabits an hour or up to 13 terabits for the entire proposed retention period (Paulsen, 2004).

Devices designed solely to meet the requirements of this NPRM may begin to out sell broadcast delay units which are currently the fastest selling piece of broadcasting gear (Stine, 2004). According to Stine of the Radio World Newspaper, there are units like this already on the market. Many of the more expensive units include unique hardware that increases overall system reliability (Stine, 2004). System reliability is a major concern for broadcasters because they do not want to risk a violation due to technology failures.

The New America Foundation (NAF) supports the FCC's NPRM on the grounds that it would allow the public to combat poor broadcast journalism in local markets. Groups that wish to conduct research on broadcast content often run into technical problems when attempting to obtain program samples. The recent "flag decision" also makes it more difficult to conduct research because programming is harder to record. The NAF suggests setting up a system where programming is transferred digitally to a central computer within the broadcast facility or directly to the FCC/Library of Congress via the Internet. The advantage of a central access point to this information is anonymity. This argument presents not only the technical challenge of actually recording/archiving material, but also a large expansion of networking ability (Snider, 2004).

McGehee of the Norman Lear Center shares the viewpoint of the NAF. The difficulty lies with obtaining program samples. It is the activist organizations and researchers who are responsible for investigating the media and whether or not they are living up to their social responsibility. FCC NPRM 04-232 should require that program recordings be placed on public file so that researchers can obtain valuable research material (McGehee, 2004). This presents another logistical challenge to broadcasters and the maintenance of public inspection files. Some broadcasters fear that the addition of recorded archives to the public inspection file will result in a flood of researchers requesting access. Increased volume of public inspections can put a strain on station employees and resources.

The FCC justifies the need for this NPRM because Congress is proposing to raise the maximum fine for indecent broadcasts by 1,700 percent. The jump will go from $27,500 to about $500,000. With that level of financial penalty at stake, more concrete evidence must be available for review. It is unlikely that the average broadcast consumer has the ability to provide a sample of the broadcast in question. Therefore, the responsibility will be placed on the broadcaster (Johnston, 2004). With this type of financial and public relations interest on the line, broadcasters will want to be certain that their logging and archiving system is reliable. Highly important systems such as these are called “mission critical” in the industry. Mission critical devices are often highly expensive. These systems contain unique hardware that aide in eliminating technical glitches. High-end, mission critical systems designed for this purpose can cost up to $10,000 (Stine, 2004).

In official comment to the FCC on MB Docket No. 04-232, the National Association of Broadcasters conducted some comparison shopping among already existing products that could satisfy industry needs if required. On the low end, the NAB cited the Telos Profiler at $600.00 for the software and $740.00 for a mid-grade PC. On the high end, the FCC priced the RCS Tracker at $10,000, and $50.00 per DAT tape. This system includes 16 channels of audio and fully integrated hardware and software (Williams, 2004).

According to the Nebraska Association of broadcasters, this NPRM is unconstitutional. They believe that it is unjustified, unsupportable, burdensome on all broadcasters and disproportionally so on small market broadcasters, inconsistent with pass FCC precedent, arbitrary, capricious and unconstitutional under the First Amendment (NBA, n.d.). This NPRM could be a violation of copyright law. The FCC actually requested comment on whether or not this NPRM would place stations in copyright violation or otherwise break contractual agreements (ShawPittman, 2004).

Most broadcasters are concerned that this NPRM is a violation of their First Amendment rights. In general, increased regulation limits the true freedom of speech and freedom of the press. Broadcasters fear that increased regulation will only make radio and television more bland (Indecency, 2004). Fearing higher fines and the newly available incriminating evidence proposed by this NPRM, broadcasters would be highly unlikely to take risks. This type of indirect censorship could have a major impact on broadcast programming and society as a whole.

The purpose of this research is to determine the feasibility of enacting MB Docket No. 04-232 and requiring noncommercial broadcaster compliance. The feasibility study approached the issue from a logistical, financial, and legal perspective. Research was conducted through evaluation of comment letters submitted to the FCC on MB Docket No. 04-232. Specifically, the content analysis was aimed at extracting the current thoughts, concerns, and comments of noncommercial broadcasters.

Research Questions:

What financial concerns do noncommercial broadcasters have with this NPRM?

General cost, labor, maintenance, equipment costs

What non-financial concerns do noncommercial broadcasters have with this NPRM?

1 st Amendment Rights, Copyright, contractual obligations

Based on financial and non-financial concerns identified above, what is the best plan for the noncommercial broadcaster in terms of compliance?

Based on financial and non-financial concerns identified above, should noncommercial broadcasters be required to comply?

Do noncommercial broadcasters support or oppose this NPRM?

This NPRM attempts to address aide the FCC in regulating the broadcast industry. To whom do noncommercial broadcasters attribute the need for tighter FCC oversight?

To answer these questions, the comment letters submitted to the FCC regarding MB Docket No. 04-232 were coded for content. There were a total of 564 comment letters filed with the FCC concerning this NPRM. 258 of the 564 comments were submitted through the Small Market Operators Caucus , a professional organization of small broadcasters from around the country. The figure (see right) illustrates this relationship. The SMOC collected comments from their constituents, and submitted each of them to the FCC individually.

The letters were read and evaluated to determine if the author was a noncommercial broadcaster. This was determined bases on explicit comments within the letter referring to each organization's noncommercial status.

The gathering of this information was designed to identify what parts of the NPRM concerned noncommercial broadcasters most. Also, the content analysis identified “sources of blame,” and demographic information. After identifying the areas that generated the most concern, solutions and recommendations could be made.

Of the 564 total comment letters, 51 noncommercial broadcasters' letters were identified. Of the 51 letters, 39 were radio broadcasters, 5 were television broadcasters, and 7 represented noncommercial broadcasters (such as National Public Radio). see figure (right) . The significantly larger amount of radio broadcasters compared to television broadcasters may be due to the relative cost factors associated with each entity. It is possible that radio stations are less expensive for noncommercial broadcasters to operate than television stations. Also, radio in general has existed longer than television broadcasting therefore allowing more market saturation for radio.

There were 67 general cost arguments in the letters (51 radio, 7 TV, 9 firm). General cost arguments were the most occurring concerns presented by noncommercial broadcasters (see Argument Occurrence Chart below). This indicates a strong level of concern with the financial burden this NPRM could place upon noncommercial broadcasters.

Of noncommercial broadcaster's letters filed, there were 47 equipment arguments (37 radio, 3 TV, 7 firm) and 44 labor arguments (35 radio, 2 TV, 7 firm). These categories proved to be the second largest argument base for noncommercial broadcasters. The broadcasters were specifically concerned with potential equipment costs generated by the NPRM as well as the potential for increased labor costs. There were only 7 arguments expressing concern over the maintenance of the operator's public inspection file (6 radio, 1 TV, 0 firm). (see Argument Occurrence Chart below)

From a non-financial perspective, arguments were made that the NPRM was overly broad and should not include small market or noncommercial broadcasters. There were 29 arguments made that the NPRM was overly broad (16 radio, 5 TV, 8 firm). There were also 18 arguments expressing concern that the NPRM would indirectly violate broadcaster's 1 st Amendment Rights (12 radio, 2 TV, 4 firm).

The content analysis kept track of the length of each noncommercial broadcaster's letter. Radio stations tended to have mostly 1 page letters. Of radio's longer letters, they tended to have been prepared by attorneys. Firms and advocacy groups for noncommercial broadcasters tended to have more letters of longer length. Television broadcasters tended to either have very short or very long letters. See chart below.

In total, there were 181 total pages of letters submitted by noncommercial broadcasters. In this case, letter length tended to correspond with number of arguments and cost figures expressed. The longer the letter, the more arguments were made and the more evidence was cited. Shorter letters tended to only make general cost arguments. Therefore, a correlation between the number of general cost arguments and letter length can be drawn.

Many noncommercial broadcasters argued that their stations had not contributed to the problems the FCC has cited as justification for this NPRM. There were 24 total instances where noncommercial broadcasters claimed that they had not had any complaint filed against them with the FCC (13 radio, 4 TV, 7 firm). Some radio broadcasters and advocacy firms specifically identified Clear Channel, Infinity, and Cumulus radio companies as the major “offenders.” There were no specific mentions of any television station by television broadcasters. However, there were 3 mentions of the Janet Jackson Super Bowl incident made by both television and radio broadcasters. There were also 4 mentions of Howard Stern.

Lastly, some broadcasters specifically cited internal cost research that they had conducted. Very few actual costs were forecasted by each noncommercial medium. Only approximately 15% of the letters had conducted costing research for equipment. Less than 5 % had conducted costing research for labor. Below is a chart of average costs presented by each medium.

In the area of financial concerns, most broadcasters are concerned with the equipment and labor costs that his NPRM may impose upon their operations. Most claimed that they were already operating on a very tight budget and would not be able to afford the capital and labor costs. According to the data gathered in this project, equipment concerns slightly out numbered labor concerns. In expensive Windows-based systems can cost as little as $500, while high end systems can start at $10,000 (Stine, 2004).

According to the data, the most common non-financial concern was with the NPRM being overly broad. In their arguments, “overly broad” meant that the NPRM was over-inclusive. They argued that small broadcasters and noncommercial broadcasters should be exempt from this regulation. The current wording of the FCC Docket does not exclude small or noncommercial broadcasters. “In this Notice of Proposed Rulemaking (“ NPRM”), we propose to require that broadcasters retain recordings of their programming for some limited period of time (e. g., 60 or 90 days) in order to increase the effectiveness of the Commission's process for enforcing restrictions on obscene, indecent, and profane broadcast programming” (FCC MB Docket No 04-232, 2004).

They also made arguments that they were not the ones to “punish” for the problems of associated with regulation enforcement. There were 24 specific comments where broadcasters claimed that they had no previous complaint filed against them with the FCC. Therefore, noncommercial broadcasters believe that there is no need to require noncommercial compliance because they are not committing violations.

Noncommercial broadcaster response to the FCC's push for tighter oversight was varied. Some noncommercial broadcasters identified specific broadcasters that were to blame. Howard Stern, Infinity Radio, Clear Channel, and Cumulus were mentioned as repeat offenders. The noncommercial broadcasters argue that these larger entities who regularly are found out of compliance should be the only ones required to retain broadcasts.

Noncommercial broadcasters overwhelmingly failed to support the NPRM. Of the 51 noncommercial broadcasters who were identified in this study, none of them supported the NPRM. Many commended the FCC for trying to improve and strengthen regulations on repeat offenders. However, as the NPRM was worded, they did not support it. They mainly were against requiring small and noncommercial broadcasters' compliance. They stated that this NPRM should be limited to large corporate entities or known offenders.